GERALD E. ROSEN, Chief Judge.
On March 9, 2010, Plaintiff Amaro Kecoye Seydi filed a complaint for a writ of mandamus, seeking to compel the Defendant federal agency, the United States Citizenship and Immigration Services ("USCIS"), and the Defendant federal officials to act upon Plaintiff's application to adjust his status. As grounds for the Court's exercise of subject matter jurisdiction, Plaintiff cites a federal statute conferring jurisdiction "of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," 28 U.S.C. § 1361, and he further appeals to his entitlement to due process of law under the Fifth Amendment to the U.S. Constitution, as well as a right of judicial review of federal agency action, see 5 U.S.C. § 702.
In lieu of answering the complaint, Defendants have filed a motion to dismiss for lack of subject matter jurisdiction or, alternatively, for summary judgment in their favor. In challenging the Court's subject matter jurisdiction, Defendants cite a jurisdiction-stripping provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(a)(2)(B)(ii), that largely forecloses judicial review of matters committed to the "discretion of the Attorney General or the Secretary of Homeland Security," and they argue that the pace of adjudication of Plaintiff's application to adjust status is just such a matter. Alternatively, Defendants argue that the delay in the adjudication of this application is reasonable as a matter of law. Plaintiff has filed a response in opposition to Defendants' motion as well as a cross-motion for summary judgment, arguing that the delay in the resolution of his application to adjust status has been
Both Defendants' and Plaintiff's motions have been fully briefed by the parties. Having reviewed these cross-motions, their accompanying briefs and exhibits, and the record as whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide the parties' motions "on the briefs." See Local Rule 7.1(f)(2), United States District Court, Eastern District of Michigan. For
The following recitation of facts derives largely from the allegations of Plaintiff's complaint and from information gleaned from the exhibits accompanying his complaint, as supplemented by procedural and legal developments outlined in the exhibits accompanying Defendants' motion. Plaintiff Amaro Kecoye Seydi is a 58-year-old male who is a native and citizen of Senegal, and who currently resides in Detroit, Michigan. In the late 1990s, he arrived in the United States on a tourist visa. Shortly thereafter, Plaintiff applied for asylum, and this application was granted by an immigration judge on March 31, 2004.
In November of 2005, Plaintiff filed a Form I-485 application to adjust his status to that of a lawful permanent resident. As of the date this suit was filed in March of 2010, this application remains pending. During this period of delay, Plaintiff has made several inquiries of the Defendant USCIS regarding the status of his application. In each instance, he was advised that his application was still under review, and he occasionally was informed more specifically that his application was on hold because he appeared to be inadmissible under § 212(a)(3)(B) of the INA, 8 U.S.C. § 1182(a)(3)(B), and because the USCIS was awaiting a decision by the Department of Homeland Security ("DHS") whether to permit a discretionary exemption from this threshold determination of inadmissibility.
As suggested in these responses to Plaintiff's inquiries, the disposition of Plaintiff's I-485 application has been impacted by recent developments in the law. Under 8 U.S.C. § 1159(b)(5), the USCIS must determine an applicant's admissibility in adjudicating an application for adjustment of status. Under 8 U.S.C. § 1182(a)(3)(B), in turn, an applicant is inadmissible if he has engaged in terrorist activity within the meaning of this statute. According to the declaration of USCIS Assistant Director Evelyn Martin, the information included in Plaintiff's application for asylum indicates that he is inadmissible under § 1182(a)(3)(B) because, from 1980 until he came to the United States in 1999, he provided material support to the Mouvement des Forces Democratiques de le Casamance ("MFDC"), an organization that meets the definition of a "Tier III" terrorist organization under § 1182(a)(3)(B)(vi)(III).
However, in the Consolidated Appropriations Act of 2008 ("CAA"), Pub. L. No. 110-161, 121 Stat. 1844, which was signed
The adjudication of Plaintiff's application has been held in abeyance pursuant to the statement of USCIS policy set forth in this memorandum, and Assistant Director Martin states in her declaration that the USCIS is "actively .. consider[ing]" how to proceed with cases, such as Plaintiff's, that remain on hold in accordance with agency policy. (See Martin Decl. at ¶¶ 21-22.)
Although Plaintiff seeks to compel Defendants to adjudicate his pending application to adjust his status, he must establish as a threshold matter that the Court has subject matter jurisdiction over this suit. In their pending motion, Defendants argue that this jurisdiction is lacking. The Court agrees.
As Defendants observe in their motion, Congress has acted a number of times over the years to narrow the scope of judicial review of immigration-related decisions. As pertinent here, section 242 of the Immigration and Nationality Act ("INA") now includes a provision divesting the federal courts of jurisdiction to review any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). Under this provision, then, the Court cannot exercise jurisdiction over the present action if the handling of Plaintiff's application is properly viewed as a "decision or action" by the Secretary of Homeland Security
In a recent decision issued shortly after Plaintiff commenced this action, Judge Walton of the District Court for the District of Columbia held under substantially similar facts that the federal district courts lack subject matter jurisdiction to review
In so ruling, the court addressed (and rejected) each of the contentions advanced by Plaintiff here as to why § 1252(a)(2)(B)(ii) should not foreclose judicial review of a USCIS decision to hold an application for adjustment of status in abeyance. First, while Plaintiff recognizes that the Secretary of the DHS has the discretion under 8 U.S.C. § 1159(b) to grant (or deny) applications for adjustment of status, he argues that nothing in this provision (or elsewhere in the INA) grants the Secretary the discretion "not to decide applications at all," or to hold them in abeyance indefinitely. (Plaintiff's Response Br. at 7.) The court in Singh, however, found that the decision to hold an application in abeyance was encompassed within the Secretary's discretionary power "to promulgate regulations that she feels are necessary to exercise her authority to grant permanent resident status to an asylee." Singh, 710 F.Supp.2d at 129 (citing the Secretary's discretionary authority under § 1159(b) to decide applications for adjustment of status "under such regulations as the Secretary or the Attorney General may prescribe"). In light of this discretionary authority to issue "regulations governing how (and when) adjustment decisions are made," the court held that the Secretary had acted pursuant to a statutory grant of discretion when she— through her delegate, the deputy director of the USCIS—issued the March 26, 2008 policy memorandum relied upon by the USCIS to hold plaintiff Singh's (and Plaintiff's) application in abeyance. Singh, 710 F.Supp.2d at 129-30 (internal quotation marks and citation omitted).
Next, Plaintiff urges the Court to distinguish between the Secretary's "action" on an application to adjust status, which is unreviewable under § 1252(a)(2)(B)(ii), and the Secretary's purported
Singh, 710 F.Supp.2d at 131-32 (internal quotation marks and citations omitted).
The Court finds this reasoning persuasive, and elects to follow the ruling in Singh. Beyond the points ably made by the D.C. district court, this Court believes it important to highlight the additional discretionary acts that would be subject to judicial review in order to determine whether the USCIS's handling of Plaintiff's application has been reasonable. In particular, not only would the Court be obligated to review the actions taken by the USCIS to date in processing Plaintiff's application and electing to hold it in abeyance—actions which have included a number of background, security, and fingerprint checks, (see Defendants' Motion, Ex. 1, Martin Decl. at ¶¶ 6-9), as well as decisions whether Plaintiff fits within certain categories of applicants that, to date, the Secretary of the DHS has elected to exempt from the terrorism-related inadmissibility provisions, (see id. at ¶¶ 12-13, 16, 19-20)—but the Court necessarily would have to inquire into the Secretary's ongoing efforts to develop additional guidelines and procedures governing the exercise of her discretionary authority to grant exemptions from the terrorism-related inadmissibility grounds relating to Tier III terrorist organizations, (
The case upon which Plaintiff principally relies, Liu v. Novak, 509 F.Supp.2d 1 (D.D.C.2007), is not to the contrary, but rather is distinguishable on two grounds. First, the cause of the delay in that case was a failure to perform a required FBI background check, and the court noted more generally that "the government has not even specified what steps it has taken in processing plaintiff's particular application." Liu, 509 F.Supp.2d at 3, 6. Here, in contrast, Defendants have completed the various background checks needed to render a decision on Plaintiff's application. Thus, while the court in Liu readily concluded that the plaintiff in that case was "challenging the absence of a decision or action," 509 F.Supp.2d at 6, this Court (like the court in Singh) finds that the facts and circumstances here place this case squarely on the "action" side of the action/inaction divide.
Next, and more importantly, the reason for the delay here, in contrast to Liu, is so that the Secretary of the DHS may deliberate upon and resolve a matter that unquestionably lies within her discretionary authority—namely, the formulation of regulations to guide her discretionary decision whether to grant Plaintiff an exemption from the terrorism-related grounds for his inadmissibility. The delay in Liu, in contrast, was attributable to the length of time needed to conduct a mandatory background check, and not any deliberative efforts by the Secretary to determine whether the plaintiff's application was worthy of or eligible for an exercise of discretionary authority. Accordingly, the Court declines to follow the reasoning in Liu, but instead is persuaded by the decision in Singh under far more similar facts.
The Court recognizes that Plaintiff is understandably frustrated with the lack of a final decision on his application to adjust status, with over five years having passed since he filed this application. Yet, it is important to bear in mind that if this Court were to compel the Defendant USCIS to immediately adjudicate Plaintiff's application, there is every reason to believe that the application "would be denied without prejudice to refiling." (Defendants' Motion, Ex. 1, Martin Decl. at ¶ 23.) As a practical matter, then, Plaintiff's best hope for favorable action on his application is that the Defendant Secretary will exercise her undeniably discretionary authority to grant Plaintiff an exemption from the terrorism-related grounds for inadmissibility that would otherwise dictate the denial of his application. It strikes the Court as incongruous to, on the one hand, insist that Defendants act promptly to adjudicate an application that can only succeed through the exercise of the Secretary's discretionary authority, while at the same time advancing a theory of subject matter jurisdiction that disavows the notion that the Secretary has been called upon to exercise her discretionary authority. In the end, while the Court certainly urges Defendants to adjudicate Plaintiff's application with all possible dispatch, it is unable to traverse the narrow and winding path conjured by Plaintiff for avoiding the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii).
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants' August 23,